50 for the Future – a Scottish environmental court

Our recent publication, 50 for the Future, lists 50 things that we believe should happen in Scotland over the next 50 years to benefit both people and wildlife. In this week's 50 for the Future article, Prof. Colin Reid, a Professor of Environmental Law at the University of Dundee, discusses the complexities of establishing an environmental court or tribunal in Scotland.

Number 43: Establish an environmental court or tribunal

Environmental problems do not fit comfortably within the traditional structures of the legal system and courts. This means that even when appropriate laws have been made, the environment and the public suffer since enforcement and implementation are weak. One way to improve the situation might be the establishment of a dedicated court or tribunal to handle environmental cases.

Unfortunately, neither the problem nor the solution is straightforward, since there are several different dimensions to the mismatch between environmental matters and the ways in which the courts work today. Three main issues can be identified.

The first is the complexity of many environmental cases. Gathering and understanding the evidence related to a pollution incident, or the poisoning of birds of prey, is not easy and establishing the long-term repercussions on groundwater quality or population health is challenging. At the same time, the legal provisions which govern the position are not straightforward, often combining obligations stemming from international and EU law with layers of technical detail or terms that are hard to define, such as “sustainable” or “significant harm”.

This complexity is then exacerbated by the lack of expertise in handling such cases. The legal personnel – advisers, prosecutors and judges – may well not have the scientific or technical background to understand the significance of what has occurred and lack the familiarity with the intricacies of environmental law to be comfortable in dealing with cases.

Thirdly, court procedures make it difficult for interested parties to bring cases to court, to assert rights and to challenge regulatory action (or inaction) which they consider to be environmentally damaging. Changes in the past few years have made it easier to establish the legal standing to raise a case, but the costs of legal action remain a formidable obstacle in many cases, although again some recent improvements have been made in accordance with the UK’s obligations under the Aarhus Convention.

These difficulties have been recognised for some time and in the past year various calls have been made for change, but with the emphasis on different aspects. The Lord President has proposed an Energy and Natural Resources Court to deal efficiently with cases in that area, the Lord Advocate suggested a special environmental stream within the criminal courts to develop expertise and demonstrate the seriousness with which such cases are treated, and Friends of the Earth have called for major changes to ensure that citizens have access to environmental justice.

Establishing an environmental court or tribunal would tackle the problems that have been identified, providing a dedicated forum with the relevant skills and expertise to deal with the complexities of environmental cases and with procedures to match. Yet there are major questions to be resolved. What, exactly is the court going to do? Is it to handle criminal prosecutions, or regulatory appeals, or complaints from the public, or all of these? How far should its jurisdiction extend in terms of planning and agricultural cases? A court whose role is to provide a strong response to environmental crime is a very different beast from one that is going to determine whether waste licensing procedures were properly complied with and the task is different again if it is to hear appeals on whether planning permission should have been granted or refused.

Moreover in a country the size of Scotland, will there be enough business to justify a wholly separate structure? Widening the role of the court to provide the volume of cases to justify its existence risks diluting the expertise which is the very reason for its creation. Perhaps building on the existing specialisation, such as the Crown Office team of “environmental prosecutors” is a more appropriate solution?

We can agree that the present position is in serious need of improvement and we can look to experience elsewhere for models to be followed – there are environmental courts and tribunals in more than 40 countries around the world. When the current Scottish Government came to power, it promised an “options paper” on the establishment of an environmental court. Time is running out for this to be produced, but the need for debate on the issue is as great as it was five years ago.

Let us know your thoughts by emailing thefuture@scottishwildlifetrust.org.uk or Tweet @ScotWildlife using #50fortheFuture.